Gay Couples Law Blog : Atlanta Same Sex Family Law and Estate Planning Commentary : Gideon Alper : Gay Law, Domestic Partnerships

Gay adoption has been illegal in Florida since 1977, but another judge has nevertheless allowed it. This makes three approved gay adoptions within the last year.

What's going on?

Circuit-judges hearing adoption cases have said that the gay adoption ban is unconstitutional, and therefore grant the adoptions despite the law against them. You might remember from discussion around the Proposition 8 trial about what makes a law unconstitutional. It's not whether it's discriminatory, but rather, whether the state has a good enough reason for discriminating.

That's why the judge said in her ruling that the law is unconstitutional because the state government's reason for it--that gay adoption is bad for children and society--isn't good enough:

There is no rational connection between sexual orientation and what is or is not in the best interest of a child. The child is happy and thriving with [his lesbian mother]. The only way to give this child permanency . . . is to allow him to be adopted.

Meanwhile, the Court of Appeals for the Third District in Florida will soon rule on the Gill adoption case, the first of three times when a judge in Florida granted a gay adoption.

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One of the most common arguments I hear against gay parenting is that same sex couples who want to have children are being selfish. The argument goes that if they really cared about the child, they wouldn't force the child to grow up with two same sex parents instead of a mother and father.

Julie Shapiro, professor at Seattle University Law School, had an interesting take on the argument. She said that the question should not be whether having kids is selfish, but whether it's responsible:

The real question, I think, is not whether a person is acting selfishly but whether a person is acting responsibly. I might want to have a child when I am twenty years old, but if I have no way to support myself and my child, lack a strong social network, and am not reasonably mature myself, then I think my decision to have a child and become a parent would be irresponsible. If, however, I wait a few years, find myself a good job with health care benefits, build myself a support network and so on, I might well be able to raise a child. At that point I might responsibly indulge my selfish desire to have a child.

Julie makes a good point, because the question of responsibility applies to all potential parents, gay or straight or single. After all, heterosexual parents are not necessarily responsible ones. See here, here, here, here, here, for examples.

So are gay couples raising children being irresponsible?

Professor Shapiro suggests that people choosing to raise children are resposible when it's likely that the children will thrive. If it's unlikely, then raising kids would be irresponsible. While opponents of gay parenting might say that having same sex parents is detrimental to kids, study after study find that kids with same sex parents end up no worse than kids with opposite sex ones.

If there's no intrensic harm to kids from being raised by gay parents, then the responsibility question should be answered on a case by case basis for any gay couple wanting to have kids, just as it is for heterosexual couples and single parents.

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The American Psychology Association last week published a comprehensive study on whether having same sex parents affects child development. The conclusion: it does not.

The research, by Dr. Abbie Goldberg, differs from previous publications by conducting a full analysis of all previous research on the well being of children with gay parents. While other studies have summarized the prior research, Dr. Goldberg is the first to write a book-length review of it.

Not only that, but the study broadens the scope of research on gay families, as the Windy City Times reported yesterday:

Also included are topics rarely discussed in the research studies to date, such as: divorce/relationship dissolution in lesbian/gay-parent households; the perspectives of non-heterosexual children of lesbian/gay parents.

I think that this kind of research, combined with upcoming 2010 census numbers on same sex families, will make families with gay parents seem more normal and less threatening. This normalcy will help shape laws to accommodate these families.

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